In O'Bryne v. Portfolio Recovery Associates, Inc., No. cv447-IEG (NLS), 2013 WL 1223590 (S.D. Cal. Mar. 26, 2013), the Southern District of California held that a debt collector did not violate the Fair Debt Collection Practices Act ("FDCPA") by seeking to collect principal, interest, and fees in a collection lawsuit under the common law theories of account stated and assumpsit. The defendant in O'Bryne, a debt collector, filed suit in California state court against the plaintiff-debtor seeking to recover a debt under various common law theories. The debtor subsequently brought ...
In Campbell v. Credit Protection Ass'n, L.P., No. 4:12CV00289AGF, 2013 WL 1282348 (E.D. Mo. Mar. 27, 2013), the Eastern District of Missouri granted summary judgment in favor of a debt collector on a debtor's claims under the Fair Debt Collection Practices Act ("FDCPA") based upon the debt collector's collection letter and credit reporting activities, holding that a debtor must come forward with evidence beyond self-serving allegations to avoid summary judgment. The defendant in Campbell, a debt collector named Credit Protection Association, sent the plaintiff-debtor a ...
In Stinson v. Receivables Management Bureau, Inc., No. 2:12-cv-02558, 2013 WL 1278966 (N.D. Ala. Mar. 26, 2013), an Alabama federal court recently held that a debt collector's telephone calls made to a non-debtor did not violate the FDCPA when the actual debtor provided the telephone number and the non-debtor plaintiff failed to inform the debt collector of the error. Plaintiff Jesse Stinson filed suit against Receivables Management Bureau, Inc. ("RMBI") alleging violations of the FDCPA and state law after RMBI made several telephone calls to his house attempting to collect a debt ...
Claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., which prohibits, among other things, companies from calling an individual's cell phone without prior consent, often involve discovery requests for call logs and call reports. Recently, a California federal court held that a defendant may be required to produce this information even in the pre-certification stages of a class action suit. In a recent case, Knutson v. Schwan's Home Service, Inc., No. 12-cv-964-GPC, 2013 WL 1222116 (S.D. Cal. Mar. 25, 2013), the parties filed a document entitled ...
In Webb et al. v. Midland Credit Management, Inc. et al., 2013 WL 1285570 (N.D. Ill. Mar. 27, 2013), the Northern District of Illinois held that a plaintiff cannot state a claim under the Fair Debt Collection Practices Act ("FDCPA") merely by alleging that a debt collector sought to collect a greater amount in a settlement letter than it sought to collect in a subsequent collection lawsuit. Rather, a plaintiff must specifically allege a factual basis for why the "inflated" amount is false, deceptive, or misleading. The plaintiffs in Webb brought a class action lawsuit under the FDCPA ...
The Florida Fourth DCA opinion in Shahar v. Green Tree Servicing, 38 Fla. L. Weekly D563d (Fla. 4th DCA March 6, 2013) demonstrates the dangers of inadequately addressing each and every affirmative defense raised by a foreclosure defendant. In Shahar, the appellate court reversed the trial court's entry of summary judgment where the lender did not factually or legally refute the defendants' unclean hands defense. The defendants' Verified Amended Answer, Affirmative Defenses and Counterclaim included allegations that the lender had engaged in a variety of inequitable and ...
John Chiles and Zachary Miller were recently published in the American Bar Association's The Business Lawyer (Vol. 68, No. 2) with an article entitled: The Supreme Court Settles a Decade-Long Debate -- 2012 Survey of RESPA Developments. The article highlights important decisions issued by U.S. federal courts addressing the Real Estate Settlement Procedures Act ("RESPA") during 2012. Of particular importance is the Supreme Court's decision in Freeman v. Quicken Loans, Inc., 132 S.Ct. 2034, --- U.S. ---- (2012), in which the Court unanimously settled a long-standing split in ...
The U.S. Supreme Court recently decided that a named class action plaintiff cannot prevent removal by stipulating to seek less than $5 million in damages before class certification, in Standard Fire Ins. Co. v. Knowles, 11-1450, --- U.S. ----, 2013 WL 1104735 (Mar. 19, 2013). The Class Action Fairness Act of 2005 ("CAFA") provides federal district courts original jurisdiction over civil class action lawsuits when "the matter in controversy exceeds the sum or value of $5,000,000." 28 U.S.C.A. § 1332(d)(2). The class must have more than 100 members and those members must be ...
For the first time, a federal court in Alabama addressed preemption under the Dodd-Frank Act. Under the Dodd-Frank Act, subsidiaries and affiliates of national banks can no longer argue that state laws are preempted. While the court held that the Dodd-Frank Amendment did not apply retroactively and found that the plaintiffs' claims were preempted, it noted the changed status of subsidiaries and affiliates of national banks in light of the Dodd-Frank Amendment. In Selman v. CitiMortgage, the plaintiffs filed suit against their mortgage loan servicer, the investor, and the insurer ...
In Florence Mussat, M.D., S.C. v. Global Healthcare Resource, LLC, 2013 WL 1087551 (N.D. Ill. March 13, 2013), the North District Court of Illinois for the Eastern Division granted a Motion for Class Certification for claims relating to alleged Telephone Consumer Protection Act ("TCPA") violations and state law claims. In February of 2011, Defendant, Global Healthcare Resource, LLC ("GHR") sent a fax to Plaintiff, Florence Mussat, M.D., S.C. ("Mussat"), on behalf of Physician Billing Services ("PBS"), stating that PBS is a subsidiary of GHR that provides medical ...